SAMBUDAMURTHI MUDALIAR Vs. STATE OF MADRAS

JUDGEMENT

(1.) This appeal is brought by certificate from the judgment of the Madras High Court dated March 31, 1965 in A. S. No. 276 of 1962.

(2.) The appellant brought the suit in O. S. No. 3 of 1961 in the Court of Subordinate Judge, Nagapattinam for setting aside the order dated May 10, 1960 of respondent No. 1 the Commissioner of Hindu Religious and Charitable Endowments, Madras who had affirmed earlier the order of the second respondent, the Deputy Commissioner, holding that the trusteeship of the Kumaran Koil in Manjakollai village was not hereditary. The appellant was elected as a trustee by the Sengunatha Mudaliars of Manjakollai village at a meeting held on June 27, 1957. According to the appellant the temple was founded two hundred years ago by the members of his community and since then the management of the temple and its affairs was always vested in the community of the Sengunatha Mudaliars and no person other than the elected trustee had at any time the right of management and control of the temple. The appellant said that the temple was declared as an "exempted" temple under the provisions of Madras Act 1 of 1925. The case of the appellant was that the trusteeship of the temple was "hereditary." The respondents, however, took a different view and proceeded on the basis that trusteeship of the Kumaran Koil was not hereditary. The Subordinate Judge held that the appellant was a hereditary trustee and the suit was not barred by limitation. The respondents took the matter in appeal to the Madras High Court which by its judgment dated March 31, 1965 allowed the appeal and set aside the judment of the Subordinate Judge. Nagapattinam. Section 6, subsection (9) of Madras Act 19 of 1951 states:-

(3.) The question to be considered in this appeal is whether the appellant is a hereditary trustee within the meaning of the section. The definition includes three types of cases:(1) succession to the office of trusteeship devolving by hereditary right; (2) succession to such office being regulated by usage; and (3) succession being specifically provided for by the founder on condition that the scheme of such succession is still in force. It is not the case of the appellant that the trustees of the temple of the Kumaran Koil are hereditary trustees because their office devolves by hereditary right or because succession to that office is specifically provided for by the founder. The contention on behalf of the appellant is that the succession is "regulated by usage." It was said that according to the usage of the temple the trustees were elected for a period of one year each at a meeting of the members of the Sengunatha Mudaliar Community and so the appellant must be held to be a trustee within the meaning of S. 6 (9) of Act 19 of 1951. In our opinion, there is no warrant for this argument. The phrase "regulated by usage" in S. 6 (9) of the Act must be construed along with the phrase "succession to this office" and when so construed that part of the definition would only apply where the ordinary rules of succession under the Hindu Law are moditied by usage and succession has to be determined in accordance with the modified rules. The word "succession" in relation to property and rights and interests in property generally implies "passing of an interest from one person to another" (vide in Re. Hindu Women's Right to Property Act 1937, 1941 FCR 12. It is now well established that the office of a hereditary trustee is in the nature of property. This is so whether the trustee has a beneficial interest of some sort or not. (see Ganesh Chunder Dhur v. Lal Behary, 63 Ind App 448 and Bhabatarini v. Ashalata, 70 Ind App 57 . Ordinarily a shebaitship or the office of dharmakarta is vested in the heirs of the founder unless the founder has laid down a special scheme of succession or except when usage or custom to the contrary is proved to exist Mukherjea J., in Angurbala Mullick v. Debabrata Mullick, (1951) SCR 1125 delivering the judgment of this Court observed: